A blog on practice in the Nation’s second-most powerful court

Can an agency make a decision nonfinal by calling compliance voluntary?

Not if voluntary really means mandatory, said the D.C. Circuit this week.  No. 19-1248, Spirit Airlines, Inc. v. U.S. Dep’t of Transp. (May 21, 2021).

The case involved a Federal Aviation Administration regulation governing airline takeoff and landing slots.  For years, the FAA studiously controlled the slots, requiring airlines to request permission for every single takeoff and landing.  The system was aptly called slot control.  But then the FAA set up a new, more flexible system, which still required cooperating with the FAA.  But under the new system, if the airline failed to cooperate, back came slot control—with a vengeance.  Airlines that refused to cooperate with the FAA would face second-class status.

The new regime constituted final agency action, the D.C. Circuit held.  To avoid this conclusion, “[t]he FAA acknowledges operating flights without its blessing could cause it to reimpose slot controls,” “but it argues this possibility is speculative and therefore of no legal consequence.” 

Not so, held the D.C. Circuit.  This supposedly voluntary system imposed real consequences on airlines that refused to play along:

We question just how “voluntary” this regime is. When it ended slot control at Newark in 2016, the FAA acknowledged “some carriers might operate at times without approval from the airport’s schedule facilitator.”  Since then, however, the FAA has conveyed its expectation – backed by the threat of a possible return to slot control – that airlines will cooperate with its scheduling efforts.  A request for help backed by a threat hardly seems a call for voluntary action; at best, the airlines appear to have been “voluntold.”  U.S. Army, “Soldier-Speak: A Brief Guide to Modern Military Jargon” (Mar. 9, 2015) (noting “a voluntold assignment is technically voluntary,” but “is understood to be mandatory”).  In Chamber of Commerce v. Department of Labor, we rejected an agency’s attempt to portray as voluntary a program that allowed certain workplaces to eliminate the risk of costly inspections by implementing a comprehensive safety and health program.  174 F.3d 206, 209 (1999).  There, as here, “the voluntary form of the rule is but a veil for the threat it obscures.”  Id. at 210.

“Voluntold.”  We like that.